R v Buckskin No. Sccrm-03-142 - [2003] SASC 285

R v BUCKSKIN
[2003] SASC 285
Court of Criminal Appeal: Bleby, Besanko & Sulan JJ

BLEBY J I agree that the appeal should be dismissed for the reasons given by Besanko J.
BESANKO J: Ms Leanne Buckskin is a twenty-six year old Aboriginal woman. She is a Narungga person. On 9 September 2002 she pleaded not guilty in the District Court to one count of aggravated serious criminal trespass in a place of residence, two counts of common assault, one count of assault occasional actual bodily harm and one count of damaging property. On 7 April 2003, the Director of Public Prosecutions entered a nolle prosequi in relation to one of the counts for common assault, and the defendant pleaded guilty to the other four counts. After hearing submissions as to sentence, a Judge of the District Court on 4 June 2003 decided to fix a single penalty of imprisonment for a period of three years and six months, with a non-parole period of 18 months. The Judge decided not to suspend the defendant’s sentence.
The offences
The offences occurred in the early hours of Sunday 28 April 2002. The defendant and an unidentified male went to a flat in Prospect, and broke into it. The flat was occupied by the two victims, Mr Mike Kamara and Mr Osman Kanneh. The defendant went to the flat to confront Mr Kanneh. On forcing their way into the flat, the defendant and her accomplice confronted Mr Kanneh in his bedroom. The defendant had a knife, and she used the knife to threaten Mr Kanneh. Mr Kanneh was slapped and punched in the face and to the left side of his head. His nose and lip/mouth were bleeding. At that point, Mr Kamara intervened and forced the defendant’s accomplice and then the defendant out of Mr Kanneh’s bedroom.
Mr Kamara then tried to calm the defendant. She would not be calmed and in fact she bit Mr Kamara’s left forearm, and with a knife in her right hand attempted to slash at his stomach. The defendant lunged at Mr Kamara with the knife on two occasions. Mr Kamara managed to knock the knife to the ground. The defendant’s accomplice intervened and Mr Kamara was forced to the ground. Thereafter, the defendant and her accomplice kicked and punched and scratched Mr Kamara for what seems to be a period of some minutes. Mr Kamara suffered injuries to his forearm, face, left side of his neck, right eye and the back of his neck.
The defendant then damaged various items in the flat.
The sentencing Judge was told that the defendant had gone to the flat to confront Mr Kanneh because he had been repeatedly importuning one of the defendant’s close friends, a woman named Ms Tamara Edwards. This conduct by Mr Kanneh occurred while Ms Edwards was staying at the defendant’s house. The sentencing Judge was told that after Ms Tamara Edwards had left the defendant’s house, Mr Kanneh began importuning the defendant.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] SASC 285
Decision Date: 22 August 2003

CaseChat Overview and Summary

The case of R v Buckskin No. Sccrm-03-142 involved Ms Leanne Buckskin, an Aboriginal woman who was convicted of aggravated serious criminal trespass, common assault, assault occasioning actual bodily harm, and damaging property. The offences took place in April 2002, when Ms Buckskin and an accomplice broke into a flat, assaulted two occupants, and caused property damage. Ms Buckskin appealed against her sentence, arguing that the sentencing judge had erred in not considering certain facts and in not suspending her sentence. The appeal was heard by the Court of Criminal Appeal, with Bleby, Besanko, and Sulan JJ presiding. The court was required to decide whether the sentencing judge had erred in not considering the fact that one of the victims had importuned Ms Buckskin, whether the sentencing judge had erred in not suspending the sentence, and whether the fresh evidence presented by Ms Buckskin should be considered.

The court found that the sentencing judge had not erred in not considering the fact that one of the victims had importuned Ms Buckskin, as it did not change the nature of the offence. The court also found that the sentencing judge was within his discretion in not suspending Ms Buckskin's sentence, as he had taken into account her history, the seriousness of the offence, and her past offending. Finally, the court found that the fresh evidence presented by Ms Buckskin, including her pregnancy and the deterioration of her sister's health, was not sufficient to persuade the court that the sentence imposed by the sentencing judge was wrong. The court held that the appeal should be dismissed, and the sentence and refusal to suspend the sentence were within the range of appropriate sentences.

Orders